February 28, 2014

In talking to John Stossel, I mentioned an incident at the Virginia ratification convention in 1788, in the debate between Patrick Henry and James Madison. This debate is an amazing moment in constitutional history and it deserves more attention than it’s received. Historians often focus on the deliberations of the Philadelphia convention, but there was relatively strong consensus there—whereas at Richmond, Henry and his allies, who were some of the most respected names in Virginia and remain giants in American history, brought their considerable talents to bear in opposing the Constitution in toto. Madison—who was a very unimpressive speaker—was forced to rely on sheer force of argument in rebutting their inflammatory and intense arguments. After days of Henry trotting out the terrible dangers of the proposed Constitution, Madison finally came to the last of his many reasons for rejecting Henry’s allegations that Congress would do all sorts of terrible things. Madison had explained why checks and balances and limited powers and other features of the Constitution would limit the mischief that Congress might get up to. Henry, of course, kept saying that Congress might violate the law, which of course is irrefutable—political leaders who are disposed to do so could do any number of awful things. So Madison finally came to his last point:

I have observed, that gentlemen suppose, that the general legislature will do every mischief they possibly can, and that they will omit to do every thing good which they are authorised to do. If this were a reasonable supposition, their objections would be good. I consider it reasonable to conclude, that they will as readily do their duty, as deviate from it: Nor do I go on the grounds mentioned by gentlemen on the other side--that we are to place unlimited confidence in them, and expect nothing but the most exalted integrity and sublime virtue. But I go on this great republican principle, that the people will have virtue and intelligence to select men of virtue and wisdom. Is there no virtue among us? If there be not, we are in a wretched situation. No theoretical checks--no form of government can render us secure. To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea. If there be sufficient virtue and intelligence in the community, it will be exercised in the selection of these men. So that we do not depend on their virtue, or put confidence in our rulers, but in the people who are to choose them.

Madison made the same point in Federalist 55. The Constitution’s authors, he said, did not have an overly optimistic view of political leaders, or an unduly pessimistic view. After explaining again the many devices that the Constitution created to protect us against government abuse, he wrote,

[T]o suppose that [various government benefits] would be sufficient to purchase the guardians of the people, selected by the people themselves, is to renounce every rule by which events ought to be calculated, and to substitute an indiscriminate and unbounded jealousy, with which all reasoning must be vain. The sincere friends of liberty, who give themselves up to the extravagancies of this passion, are not aware of the injury they do their own cause. As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form. Were the pictures which have been drawn by the political jealousy of some among us faithful likenesses of the human character, the inference would be, that there is not sufficient virtue among men for self-government; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another.

Alexis de Tocqueville sounded the same theme when he wrote that “in the constitutions of all nations, of whatever kind they may be, a certain point exists at which the legislator must have recourse to the good sense and the virtue of his fellow citizens. This point is nearer and more prominent in republics, while it is more remote and more carefully concealed in monarchies; but it always exists somewhere. There is no country in which everything can be provided for by the laws, or in which political institutions can prove a substitute for common sense and public morality.”

Today, people often tell me they’re exasperated at the idea that the Constitution is a safeguard for our liberty, given how often it has been ignored or violated. And that’s a valid concern. But the Constitution is only words on paper—just like a contract, a map, a recipe, a deed, or the Bible. We can ignore what these words mean—but we cannot blame the words on paper for failing to protect us from ourselves. It is up to us to honor the Constitution’s meaning, and we have only ourselves to blame when we fall short. To paraphrase Auden, when we ignore it or dodge its meaning, that’s the way we’re punished by the Constitution.

I mentioned that while liberals like to accuse conservatives (often rightly) of "science denialism," they're just as guilty when it comes to economics: they practice supply and demand denial. They insist that they can somehow escape the basic laws of economics, which say that if you raise the price for something, you're going to get less of it. If you legally raise the price for labor, you're going to get more unemployment. Liberals search in vain for exceptions. They know minimum wages cause unemployment (else why not raise the minimum wage to $1,000/hr?) but prey upon the least educated, least experienced people in our society to make themselves look compassionate. But you cannot help poor people by making their jobs illegal.

Milton Friedman called the minimum wage "the most anti-black law on the books" due to its terrible consequences for black unemployment. He explained that in his classic book, Free to Choose, which is definitely required reading. While you're at it, get Hazlitt's brilliant Economics in One Lesson.

I said that "everywhere you leak, the world hangs a bucket"--by which I meant that anything you don't know is something the government can exploit to take your freedom away. I stole the line from the comedian Gallagher. I have no idea what he meant by it.

I quoted my favorite Christian libertarian, John Milton, from his 1649 book, The Tenure of Kings and Magistrates. Milton said, "None can love freedom heartily, but good men. The rest love not freedom, but license, which never had more scope, or more indulgence than under tyrants. Hence is it, that tyrants are not often offended, nor stand much in doubt of bad men, as being all naturally servile; but in whom virtue and true worth most is eminent, them they fear in earnest."

I said I don't like Joseph Ellis. I explained why in my review of his George Washington biography in the May, 2005 issue of Liberty. You can read that here; my review is on p. 44.

February 13, 2014

"Because they assume that democracy is our central constitutional value, and deduce jurisprudence from there, today’s lawyers, judges, and law professors—both conservative and liberal—are incapable of advocating a sensible theory of judicial review." I explain at Cato Unbound.

February 11, 2014

Here is a proposal that I think everyone, regardless of their political views, should be able to support: the right to try.

This proposal would allow terminally ill patients to try medicine or treatments that have been approved for safety, but not for efficacy, by the FDA. It's a sad fact that every year, untold numbers of people die and suffer due to the the FDA's time-consuming, and sometimes politically manipulated, process for approving medical treatments. They should have the right try treatments that might not work--but might save, or at least improve, their lives. It shouldn't be up to government bureaucrats to make these decisions for us. It's not smart, it's not efficient, and it's not compassionate.

As Christina Corieri writes,

Right to Try allows a patient to access investigational medications that have passed basic safety tests without interference by the government when the following conditions are met:

1.) The patient has been diagnosed with a terminal disease;2.) the patient has considered all available treatment options;3.) the patient’s doctor has recommended that the investigational drug, device, or biological product represents the patient’s best chance at survival;4.) the patient or the patient’s guardian has provided informed consent; and5.) the sponsoring company chooses to make the investigational drug available to patients outside the clinical trial.

For patients suffering from conditions for which there is no approved known cure, the FDA’s traditional role of protecting patients from drugs and devices that have not yet proven effective has little meaning. These medications have already been deemed safe enough to enlarge the group of patients involved in the clinical trial to several hundred or even several thousand individuals. The requirement for informed consent ensures that terminal patients considering this option are fully aware of the risks involved. Moreover, allowing earlier access to investigational medications with informed consent is supported by the medical community. Recent studies show that a clear majority of specialists, including neurologists, oncologists, orthopedic surgeons, and emergency-room doctors support making investigational drugs available prior to full FDA approval. Further, the Right to Try initiative allows the company producing the investigational medication or device to determine whether it will be made available. If a company does not wish to make a medication available due to lack of adequate inventory, fear of liability, or any other reason, the company is not compelled to do so. Furthermore, insurance companies are not compelled to provide coverage for investigational medications. Thus, Right to Try protects a patient’s right to medical autonomy without infringing on a company’s rights.

Sadly, one obstacle in this compassionate, common-sense limitation on government, is the D.C. Circuit's deplorable decision in the Abigail Alliance case, which held that people have no constitutional right to access potentially life-saving medical treatment that the government has chosen not to allow them. That decision was wrong, and demands to be overruled.

I wish the Goldwater Institute the best of luck in getting this reform passed.